CAUSE NO. 2011-64922LAYNE HARDIN AND KATHERINE IN THE DISTRICT COURT OFLEBLANCHARRISCOUNTY, TEXASVS.TEXAS ANDROLOGY SERVICES,LLC,AND TOBIE DEVALL55THJUDICIAL DISTRICTCOUNTERCLAIMAGAINST PLAINTIFF, LAYNE HARDINNOW INTO COURT, through undersigned counsel, comes defendant, TOBIEDEVALL, who, with respect, represents that:I. PARTIESLAYNE HARDIN is an individual of the full age of majority and resident of CalcasieuParish, Louisiana, and is the plaintiff in the principal demand herein.TOBIE DEVALL is an individual of the full age of majority and resident of CalcasieuParish, Louisiana, and is the defendant in the principal demand herein.II. DISCOVERYThe principal demand in this matter is already being conducted under Level 3 ofTexas Rules of Civil Procedure 190.4.III. VENUE AND JURISDICTIONVenue and Jurisdiction have already been established in the principal demand ofthis case because all or a substantial part of the events giving rise to this litigation occurredin Harris County, Texas, and the amount in controversy is within the jurisdictional limits ofthe District Courts of Harris County, Texas.Filed 12 October 19 P3:24Chris Daniel - District ClerkHarris CountyED101J017140395By: deandra mosleyUnofficial Copy Office of Chris Daniel District ClerkIV. FACTSOn or about January25, 2002, counterclaim-defendant, LAYNE HARDIN, storedeight (8) vials of his spermin a cryopreservationfacilityknown, at thetime, as WestHouston Fertility Center.At the timeof the cryopreservationof theafore describedeight (8) vialsof sperm,LAYNE HARDINwas in a relationship with Katherine LeBlanc. At the time of thiscryopreservation, LAYNE HARDINsigned an agreement with West Houston FertilityCenter that, in the event ofthe dissolutionofhis relationshipwithKatherine LeBlanc,decisional authority of the eight (8)vials of cryopreserved sperm at West Houston FertilityCenter would be placed with Katherine LeBlanc.At some point after the storageof his cryopreserved sperm, LAYNEHARDIN endedhis relationship with Katherine Lel3lanc. At no time after the dissolution of thisrelationshipdid LAYNE HARDINor Katherine LeBlanc contact West Houston FertilityCenter to inform it or its staff that their relationship had, in fact, dissolved.Following the dissolution of his relationship with Katherine LeBlanc, LAYNEHARDIN began a relationship with TOBIEDEVALL.At some point duringtheinitial phasesof their relationship, LAYNEHARDINandTOBIEDEVALL began discussing about the potential of having children;however, LAYNEHARDINhad already hadavasectomy. Nevertheless, LAYNEHARDINinformedTOBIEDEVALL that he had sperm stored in Houston, and that she could use the sperm to attempttobecomepregnant. At notimedidLAYNEHARDINever informTOBIEDEVALL thatKatherineLeBlanc haddecisional authority of said sperm, and there wasno other reasonthat TOBIEDEVALL would have suspected otherwise.Thus, LAYNEHARDIN fraudulentlyUnofficial Copy Office of Chris Daniel District Clerkmisrepresented to TOBIE DEVALL that he had ownership, control, or otherwise decisionalauthority of said sperm.LAYNE HARDIN then began searching for fertility specialists in Houston who couldinseminate TOBIE DEVALL with his cryopreserved sperm. LAYNE HARDIN located LeahSchenk, M.D., a fertility specialist with Obstetrical & Gynecological Associates in Houston,Texas.On March 3, 2008, LAYNE HARDIN and TOBIE DEVALL consulted with Dr. Schenkregarding TOBIE DEVALLs chances of becoming pregnant. At this consultation, LAYNEHARDIN represented to Dr. Schenk that he had eight (8) vials of sperm cryopreserved atWest Houston Fertility Center that he wanted to be used for TOBIE DEVALLs inseminationprocedure. At no time during this examination or thereafter did LAYNE HARDIN everinform Dr. Schenk that Katherine LeBlanc had decisional authority of said sperm, thusfraudulently and intentionally misrepresenting to both Dr. Schenk and TOBIE DEVALL thathe had ownership and control of said sperm.On October 26, 2009, with LAYNE HARDINs full knowledge and consent to TOBIEDEVALL, TOI3IE DEVALL underwent intrauterine insemination with two (2) vials ofLAYNE HARDINs cryopreserved sperm by Dr. Schenk, which resulted from the fraudulentand intentional misrepresentations of LAYNE HARDIN.V. CAUSE OF ACTIONCounterclaim for Fraudulent and Intentional Misrepresentationsby Layne Hardin to Tobie DevallCounterclaim-Defendant, LAYNE HARDIN, fraudulently and intentionallymisrepresented to TOBIE DEVALL that he had ownership, control, or otherwise decisionalauthority of the sperm used by TOBIE DEVALL in the intrauterine insemination procedureUnofficial Copy Office of Chris Daniel District Clerkon October 26, 2009. Because of these fraudulent and intentional misrepresentations byLAYNE HARDIN, TOBIE DEVALL agreed to said intrauterine insemination procedure usingthe cryopreserved sperm stored by LAYNE HARDIN and Katherine LeBlanc with WestHouston Fertility Center on January 25, 2002.LAYNE HARDINs actions were fraudulent and intentional since:1. He represented to TOBIE DEVALL that he was the owner of, in control of, orotherwise had decisional authority of the cryopreserved sperm ultimately usedin the intrauterine insemination of TOBIE DEVALL on October 26, 2009;2. The afore described representations were false because LAYNE HARDIN hadentered into an agreement with Katherine LeBlanc on January 25, 2002 that inthe event of the dissolution of their relationship, Katherine LeBlanc would havedecisional authority of said sperm; and3. At the time he made such representations to TOBIE DEVALL, LAYNE HARDINknew that such representations were false because he was fully aware andcognizant of the afore described agreement with Katherine LeBlanc.Due to the fraudulent and intentional misrepresentations of LAYNE HARDIN,TOBIE DEVALL was sued by Katherine LeBlanc for claims of intentional infliction ofemotional distress and conversion. In the event TOBIE DEVALL is found liable toKatherine LeBlanc for said claims, she will suffer great harm and incur extensive damage,all due to the sole and exclusive fraudulent and intentional misrepresentations of LAYNEHARDIN.Therefore, in the event TOBIE DEVALL is found liable to Katherine LeBlanc for anysums, those sums should be paid, in whole, by LAYNE HARDIN as any such damages will beUnofficial Copy Office of Chris Daniel District Clerkdue directly and exclusively from the fraudulent and intentional misrepresentations ofLAYNE HARDIN to TOBIE DEVALL.VI. ATTORNEYS FEESCounterclaim-Plaintiff, TOBIE DEVALL, is entitled to recover reasonable andnecessary attorney fees against Counterclaim-Defendant, LAYNE HARDIN, for breach ofcontract due to fraudulent and intentional misrepresentations to TOBIE DEVALL.VII. PRAYERFor all of these reasons, Counterclaim-Plaintiff, TOBIE DEVALL, prays thatCounterclaim-Defendant, LAYNE HARDIN, be cited to appear and answer and the Courtaward damages unto TOBIE DEVALL for any damages she may be found liable to KatherineLeBlanc in the principal demand of this case, including reasonable and necessary attorneysfees, prejudgment and post-judgment interest on all damages, court costs, and all otherrelief allowed by law.Respectfully submitted:NEWMAN, HOFFOSS & DEVALL, LLP:E HOFFOSS, JR. (TX 24071602)30 Hodges StreetLake Charles, Louisiana 70601Telephone: (337) 439-5788Facsimile: (337) 436-5430Email: jlhoffoss nhdlawvers.comATTORNEY FOR TOBIE DEVALLUnofficial Copy Office of Chris Daniel District Clerk